Non-matrimonial property – how do the courts deal with it?

The overall ‘pot’ of assets for separating spouses can be divided into matrimonial and non-matrimonial assets. The distinction can be difficult to draw, particularly when the marriage is long and the assets which were acquired prior to the marriage have since been mingled with matrimonial assets.

Non-matrimonial property can be property which has been brought into the marriage by one party without any input or contributions by the other, or it could be inheritance received before, during or after the marriage for one party’s benefit, such as inheritance from the parent of one spouse.

Inheritance is treated differently to all other types of assets in the marriage and is considered non-matrimonial, irrespective of when it was received. This is because in the view of the court, inherited property represents an ‘unmatched’ contribution from one party in which the non-receiving party has no expectation to share. This is not to say that inherited property is always excluded from the matrimonial ‘pot’ but rather that the court must carefully consider what weight that inheritance has to the overall assets.

The treatment of inherited assets for separating couples is complex and has been considered in our blog here.

Pre-matrimonial assets

Whether assets acquired prior to the marriage will be excluded will depend on the source of those assets and how they have been treated during the marriage. An influential case for pre-matrimonial assets is the case of K v L [2011] EWCA Civ 550. Here, it was determined that if the assets of the marriage are so great that it diminishes the initial contributions of the pre-matrimonial asset, and if the pre-matrimonial asset was mingled with matrimonial assets during the marriage and finally if the pre-matrimonial asset was used to purchase a ‘central’ matrimonial property such as the family home, then it is more likely that the pre-matrimonial asset will be included in the marital pot.

Post-separation assets

Often, married couples will separate and not take steps to divide their finances for a number of years. During that time, one or both parties may have acquired assets through their own efforts or endeavours which they will want to exclude from the matrimonial pot.

It is important to ascertain the source of the post-separation asset, for example, if capital from the marriage was used to acquire a further asset post-separation, then it is likely that this will be considered as matrimonial property; in the case of Cowan v Cowan [2001] EWCA Civ 679,the husband traded his wife’s share of the capital from the marriage and generated a substantial wealth in the six years following separation.

Whether an asset is considered matrimonial or non-matrimonial, is very much dependent upon the facts of each case. Even if an asset is considered as non-matrimonial, it does not necessarily follow that that asset cannot be shared between parties, if it is considered that one or both parties’ ‘need’ some or all of that asset.

Non-matrimonial property and how it should be treated is highly complex. It is important that you seek legal advice as soon as possible with an experienced family law specialist and at Hunter & Uro solicitors, we can advise and guide you through the process to ensure that you secure the outcome that is most suitable for you. Serving Bedford, Northampton and Milton Keynes, our lawyers can help you with your family law and divorce matters. Contact us on 01234 889777 for a free initial consultation.